AVOIDING LIABILITY BLOG

Conflicting Requests

August 2007

… Suppose that a patient has signed an authorization form allowing you to release confidential information to a third party, but after leaving your office calls you to request that the information not be disclosed. Or, suppose the mother of a 10 year-old patient authorizes you to release information to the child’s private school, but before you send the records the father calls you and requests that you not send the records until he has had a chance to review them. How should you handle such situations? The answers to these questions depend upon a variety of factors, not the least of which is state law, but there are some general principles that can provide guidance in many such cases.

In the first scenario, the issue involved is revocation of a previously signed authorization form. In other words, should the therapist obey the verbal wishes of the patient and not send the records? If the patient shortly after the oral revocation again indicates that he or she wants the records sent, the therapist’s delay in sending the records might, in a given case, cause some problems for the patient. If the therapist were to ignore the patient’s verbal revocation request and send the records too quickly, the patient may be very angry and may claim a breach of confidentiality. In order to avoid being in “no person’s land,” it is important for the therapist to be on top of the situation, to move quickly, and to be real clear with the patient.

While the following basic principles will help in most cases, this situation can on occasion mushroom into a major problem for the therapist or counselor affected. First, patient authorizations to release confidential information to a third party must generally be written and signed. The general rule in most states is that just as a verbal authorization to release confidential information is not valid, a verbal revocation of a previously signed authorization is likewise not valid. Typically, the revocation must be in writing. It is important for the therapist or counselor to get that revocation in writing promptly so that the practitioner does not wind up confused about the course of action to be taken. A fax from the patient, followed by receipt of the original written revocation, should usually suffice.

In the second scenario, it is important to understand that the therapist or counselor may (depending upon state law) be able to act upon the signature of either parent in many situations. It is also important to understand that while either parent may often be able to authorize the release of confidential information pertaining to their minor child, the law may merely allow, but not require, the release of such information. Therefore, some practitioners routinely tell the parents of a child that they will only act upon the signature of both parents, and if there is disagreement, the practitioner will await their resolution of the dispute. This approach may work in many instances, but it also may be problematic.

Suppose that the information is important to a decision that must be made with respect to the child and that time is of the essence. Suppose further that the parent who has physical custody of the child wants the information to be released and the other parent, who has joint legal custody but no physical custody, wants the practitioner to not release the information until the records are inspected by that parent. In cases like this, it is sometimes helpful to look at the situation in a bifurcated way. That is, the practitioner may decide to let the parent with no physical custody know that there are separate rules with respect to inspection of records and that he or she is free to inspect the records pursuant to the process provided for by the laws of that particular state. With respect to the issue of authorizations, however, that parent can be informed that since either parent may sign the written authorization, the therapist is going to obey the wishes of the custodial parent – that is, the parent with whom the child resides.

Each case must of course be influenced by its own particular facts. What counselors and therapists must be careful to avoid in all cases is allowing themselves to be put in an ambiguous situation that may result in angering the patient (or someone acting on behalf of the patient) and possible legal vulnerability. Get it in writing and get it quickly! Don’t allow yourself to be manipulated. Understand the applicable law and be clear with those who give one direction in writing and then change their minds.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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